After cocaine charge, JBLM doctor denied fair trial still fights to clear name

Maj. Eric Smith in the office of his University Place home with a stack of his medical records. Smith was convicted of cocaine use two years ago, based on a contaminated urine sample. He received clemency after serving seven months in jail at JBLM. Since then, an appeals court has overturned his conviction. Drew Perinedperine@thenewstribune.com

Maj. Eric Smith in the office of his University Place home with a stack of his medical records. Smith was convicted of cocaine use two years ago, based on a contaminated urine sample. He received clemency after serving seven months in jail at JBLM. Since then, an appeals court has overturned his conviction. Drew Perinedperine@thenewstribune.com

In his first 17 years in the Army, Maj. Eric Smith served as a military doctor on assignments that took him from Kentucky to Tanzania and to frontline duty caring for wounded soldiers in Iraq.

On Oct. 12, 2012, he found himself in starkly different circumstances as a prison inmate at Joint Base Lewis-McChord.

There, he shared a bay with convicted thieves, rapists and child molesters, and went to Bible study with Staff Sgt. Robert Bales, then awaiting charges on murdering 16 Afghan civilians.

Smith’s transformation from healer to inmate resulted from a two-year prison sentence for a single positive result for cocaine during a routine drug test of his urine. He ended up serving seven months after a clemency request was granted.

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The punishment was extraordinary. In 2012, 13,316 U.S. soldiers tested positive for drug use. Only Smith and five others went to prison that year for that offense.

Throughout his ordeal, Smith has maintained his innocence, openly admitting he’s battled alcoholism and medical problems but declaring — time and time again — that he has never turned to cocaine.

Smith’s experiences of the past few years raise questions about whether he received fair treatment under the military justice system, and about the potential for errors in Army drug testing.

▪ Though Smith’s urine sample was positive for cocaine, a subsequent test of a hair follicle came up negative. Yet it was never introduced as evidence at his court martial. That prompted an Army appeals court in July to set aside his conviction, saying he did not get a fair trial. All of his rights and privileges were ordered restored.

▪ Smith paid an independent laboratory for a second analysis of the urine sample. That analysis, which was completed long after the court-martial panel had found him guilty, came to a startling conclusion: His urine sample had been contaminated with the DNA of an “unknown and unrelated individual.”

These developments have not caused Army officials to try to make amends with Smith. Instead, in August, an Army superior — once again citing cocaine use, as well as unprofessional conduct — put a reprimand in Smith’s file.

This action could lead to a punitive discharge that could strip Smith of pension and other benefits, and hamper his efforts to practice medicine in civilian life.

“That would be an outrage,” said the 45-year-old Smith, who lives in University Place with his wife. “I’m not guilty of any crime. I’ve saved lives in action, and that’s how they want to treat our veterans — really?”

Army stands by drug-test protocols

Smith’s saga began with an Army drug-testing program that administers urinalyses to hundreds of thousands of soldiers every year. In 2012, more than 908,000 soldiers took the tests, some more than once.

In the Army, a positive drug test usually leads to a commander disciplining a soldier in a low-level, non-judicial proceeding called an Article 15 hearing. The commander then gets to decide whether the soldier stays in the Army; the punishment seldom involves prison time.

Madigan officials say that strict protocols for chain of custody are followed when urine samples are taken and then sent out for analysis.

The samples are analyzed at a handful of sites. Smith’s was assessed at Tripler Army Medical Center in Hawaii. It’s the Army’s primary drug-testing lab for western states and the Pacific region. It handles all Army tests from JBLM, about 106,000 of them in 2012.

James Guzior, a Tripler spokesman, said the hospital has never reported a false positive test because of its “strict adherence to the highest level of standards and procedures.” He also said that Tripler has never reported a contamination of a urine sample.

The Army for years has deemed these tests to be infallible. This is like them being confronted with evidence that the world is not flat.

Defense attorney Bill Cassara

Tripler reviewed Smith’s case in response to questions from The News Tribune and Seattle Times. Guzior said the review found the lab’s procedures were followed correctly. The lab is inspected at least three times a year by Army medical and legal commands.

Tripler and Madigan officials say it is possible for someone else’s DNA to have appeared in Smith’s urine. That could happen if a worker handling the sample shed a small amount of skin cells into it. But even if that did occur, they say the skin would not trigger a false positive, so the test would still be valid.

A Madigan hospital spokesman added: “The test has not been proven tainted. The original urine sample provided by Maj. Smith was done with an observer and following strict protocols regarding chain of custody to the Tripler lab. There is no indication that the sample was tampered with. That sample received by the Tripler lab tested positive for benzoylecgonine (BZE), which is the chemical compound of metabolized cocaine. The presence of secondary DNA does not negate the validity of the positive urinalysis test results.”

Smith’s attorney, Bill Cassara, likened the Army’s handling of the case to a script from “The Twilight Zone.”

He notes that the independent test results from NMS Labs, a Pennsylvania-based firm, indicated there were two major contributors of DNA in Smith’s urine sample. That would appear to rule out the possibility of a trace contamination from a laboratory tech.

Cassara is a veteran military defense attorney who has represented clients accused of drug use in various branches of the armed forces. He often hears clients say they’re innocent but can’t prove it.

Smith’s case is different, he said, and the Army does not seem to know what to do with him.

“The Army for years has deemed these tests to be infallible,” Cassara said. “This is like them being confronted with evidence that the world is not flat.”

Struggles with alcohol abuse, health problems

Smith joined the Army Reserves in 1987. He later was commissioned as an active-duty officer and served as a linguist before heading off to the Philadelphia College of Osteopathic Medicine to get his degree under an Army scholarship program.

Early in his Army career, he had bouts with alcoholism and later struggled with PTSD as he deployed to Africa, Uzbekistan and the Sinai Peninsula. In 2004, he spent six months in Iraq as a general medical officer.

Smith’s positive test for cocaine came in July 2011, a difficult period in his life when had just completed an alcohol abuse program that he’d requested when he recognized his drinking was out of control.

I’m not guilty of any crime. I’ve saved lives in action, and that’s how they want to treat our veterans – really?

Maj. Eric Smith

Smith knew he was being monitored for substance abuse that summer. He also had an assignment at Naval Base Kitsap-Bremerton that would have allowed him to skip the urinalysis when he was chosen for it. Instead, he wanted to demonstrate to his command that he was sober.

“I was in recovery at the time. There was no surprise for me in being tested. So if I went out and used illicit substances, that would be crazy,” he said.

Medical and legal records show he also was coping with complex health problems, likely from a parasite he picked up at some point in his Army career.

During the months before the drug test, Smith acknowledges he was flustered, abrupt and at times rude. In one instance in early summer 2011, he snapped at a junior-ranking noncommissioned officer at work. He apologized for his harsh words, but it led to a reprimand in his file.

One month after taking the drug test, in August 2011, Smith was informed that it came back positive.

That same month, in his battle to clear his name, he obtained a significant piece of potential evidence. While any cocaine detected by the urinalysis should still have been in his body, he had a hair follicle extracted from his chest and analyzed for any drugs. It came back negative for cocaine.

A transcript of Smith’s September 2012 court-martial shows Smith’s military attorney questioned a key prosecution witness about the differences between the hair follicle test and the urine sample. But the defense attorney failed to complete paperwork on time that would have allowed the hair follicle test to be submitted as evidence.

As a result, jurors, although informed of the hair test, were explicitly told not to consider it as proof of whether Smith did or did not use cocaine.

The court-martial panel found Smith guilty and sentenced him to two years in prison.

In 2012, 13,316 tested positive for drug use. Just six went to jail solely for that offense.

Later, the Army appeals court wrote that the hair follicle evidence in particular would have “buttressed the defense theory of the case.”

Smith reported to the Regional Confinement Center at JBLM in October 2012.

Still working to clear his name

When he got out of prison in the spring of 2013, Smith was not welcome back at Madigan.

The hospital revoked his credential to practice medicine, and a 10-member committee unanimously rejected his appeal.

Its members did not trust Smith or believe his statements that he did not use drugs. They found him “dishonest,” according to their notes, particularly about his past alcohol abuse.

“Ultimately the committee concluded that although Maj. Smith has many qualities that make a good physician, his multiple (substance abuse) failures and unprofessional conduct as an officer are of great concern,” the committee wrote.

In the two years and seven months since his release from prison, Smith has held a series of administrative jobs at Madigan as he has worked to clear his name.

Smith said he has not consumed alcohol for five years. He had hoped to retire after 20 years and practice medicine as a civilian, but now must prepare for a separation board that could end his Army career in disgrace.

He thought the Army appeals court decision dismissing his conviction last summer would return him to good standing. Instead, it did not change his command’s perception of him.

“They’re taking the approach that I got off on a technicality. They’re not even disturbed (by the DNA test),” he said. “The fact that I did not get a fair trial does not matter to them. I just find that extremely callous and chilling.”